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To date, any reasonable discussion of the Chicago Cubs/rooftops saga necessarily included an admonition that, without actually seeing the contract between the parties, drawing conclusions too aggressively would be a mistake.

Against the bubbling backdrop of failed negotiations, one lawsuit, and the Cubs filing for a permit to erect an outfield sign at the very heart of the dispute, Kaplan secured a copy of the agreement between the Cubs and the rooftops, which has purportedly provided the grounds for the rooftops to keep selling tickets for views into Wrigley Field in exchange for 17% of their gross receipts. It goes without saying: you must read Kaplan’s piece.

An important caveat up front from a former lawyer: seeing snippets of the contract, and reading Kaplan’s thoughts (as well as those of anonymous attorneys with whom he spoke), has some value, but don’t go too far. Isolated contract provisions, without seeing the entire context (of the contract, the negotiations that led to the contract, and the dealings of the parties before and during the contract), can be misleading. Even for the attorneys involved in these negotiations, nothing is definitive. You may notice that I frequently straddle the fence and talk about “the gray.” Well, my background in the law is a primary reason. Very, very little in the world of law/business/sports/whatever is black and white.

Now, then. Let me offer the best I can.

Per Kaplan’s take, and the attorneys with whom he consulted, the key provision in the contract as they relate to the renovation of Wrigley Field and the erection of outfield signage is the following (this is the one we’ve heard obliquely referenced before by the Cubs):

6.6 The Cubs shall not erect windscreens or other barriers to obstruct the views of the Rooftops, provided however that temporary items such as banners, flags and decorations for special occasions, shall not be considered as having been erected to obstruct views of the Rooftops. Any expansion of Wrigley Field approved by governmental authorities shall not be a violation of this agreement, including this section.

For the term of the contract – which runs through 2023 – the Cubs may not erect anything “to obstruct the views of the Rooftops.” I already see an angle I like for the Cubs. I would argue that, to the extent the Cubs are erecting large outfield signs that happen to obstruct the views of the Rooftops, the Cubs are not erecting the signs to obstruct the views. The obstruction is merely incidental.

Setting that weak argument aside (the meaning of a two-letter word is important, but can get you only so far), everyone immediately sees the big one: “Any expansion of Wrigley Field approved by governmental authorities shall not be a violation of this agreement, including this section.”

Boom. Dead bang winner for the Cubs, yes? After all, the renovation project – including the outfield signage – has been approved by governmental authorities. Should the Cubs put up the signs pursuant to those approvals, there’s no violation, right?

Well, as Kaplan points out, the rooftops’ argument is likely to be that the clause in Section 6.6 is referring only to true “expansions” of Wrigley Field, i.e., making the park larger to include more seating. Who knows? Perhaps when the contract was being negotiated, this was indeed the intention of the parties. If a judge – or an arbitrator, as the case may be* – sees ambiguity in the plain language of the contract, he/she may do some external interpreting, including by digging into what the parties meant when they wrote that provision in the first place (and, if the Cubs did the drafting, that ambiguity would be construed against them).

*(Kaplan confirms that the contract does contain a mandatory arbitration provision, which is good news for anyone wanting an expeditious resolution if there is a legal battle. Arbitration, unlike court, tends to move more quickly (though not always). Then again, the rooftops (or the Cubs) could challenge the enforceability of the arbitration provision on any number of theories, dragging things out. So, actually, it’s not actually certain that the requirement of arbitration will speed things up. See? Gray.)

I see at least two serious problems with this argument for the rooftops, however. First, as discussed by Kaplan, the Cubs have gone to great lengths to frame what they are doing in the outfield as an “expansion.” Indeed, the Cubs are literally bumping out the walls at Wrigley as part of the installation of signage (which increases or “expands” the footprint of Wrigley, and the usable indoor space). Now we know, by the way, why the rooftops weren’t immediately on board with the bump-out plan, which was designed, in part, to reduce the impact of the signage obstructions (i.e., the rooftops probably knew that made any “expansion” argument more difficult for them).

Specifically, but without limitation, Applicant shall have the right to expand the Wrigley Field bleachers to install (i) a new video board in left field, which may include an LED sign, a neon illuminated sign above it and two light towers to assist in outfield lighting; and (ii) a neon sign in right field, which signage has been approved by the Commission on Chicago Landmarks and, in addition to being part of the bleacher expansion, and along with all other signage contemplated by this Planned Development, is integral to the expansion and renovation of Wrigley Field and the development and redevelopment of the Property as contemplated herein.

The language used by City Council is not dispositive, but it’s further support that the signage – without even considering the wall bump-outs – was designed to be considered an “expansion” of the Wrigley Field bleachers.

The second problem I see with the rooftops argument relates to Section 6.2 of the agreement. While I don’t really see Section 6.2 as quite as critical as Kaplan (at least not for the reasons discussed), it could conceivably limit the Cubs’ exposure. Which is nice for them.

More importantly for this particular discussion, Section 6.2 presents a serious problem for the rooftops in relation to that all important “expansion” word. Recall, to avoid being slam-dunked by Section 6.6, the rooftops would likely have to argue that “expansion” in that section meant the equivalent of “seating expansion.” The problem? In Section 6.2, the parties explicitly discussed seating expansions as a distinct thing from expansions, in general:

If the Cubs expand the Wrigley Field bleacher seating and such expansion so impairs the view from any rooftop ….

If “expansion” always and necessarily meant “seating expansion,” then there was no reason to write Section 6.2 in the way that the parties did. The law, however, presumes that parties drafting a contract say what they mean, and don’t include surplusage. In other words, the parties specified in Section 6.2 that they were referencing “bleacher seating” expansions, and not any other kind of expansion. That means that, in Section 6.6, when “expansion” is referenced without any kind of “seating” qualifier, the parties mean any kind of expansion. Bumping out the walls? Adding signage? Knowing that new seating is not required for an “expansion,” to me, those are pretty clearly expansions.

So, in sum, based on the portions of the contract we’ve now seen (presuming they are accurately characterized by Kaplan, and I have no reason to doubt him), the Cubs appear to have a very strong position. Why, then, would the rooftops not have settled by now? Well, it could be as simple as “when the business is on the line, a company will do anything to try and preserve itself, even in the face of long odds.”

Or it could be that the rooftops’ available legal challenges here are not limited to the contract. As I guessed after the Convention, it’s possible that the rooftops will argue that the Landmarks Commission (or another governmental body) lacked the authority to change the landmark status of the bleachers (remember all of that “the sweep and contour of the bleachers” talk?). A lawsuit on that basis would have nothing to do with the contract, and could see the Cubs – and the City of Chicago – facing down the rooftops in court.

In other words, the fact that the Cubs appear to be in a very good position with respect to the contract arguments may not be as impactful as we hope. Once again – sigh – we’ll just have to see what happens.

Here is some interesting history that I did not know. I just saw the picture below on Twitter. It’s from the Cubs opening day game in 1908 at former West Side Park, which was located where the campus of UIC is today. The thing that really struck me in the photo is the rooftop bleacher seating across from the outfield!

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